Of Ecocide and Misanthropy: A Response to Darryl Robinson, Part I

Introduction

Is it misanthropic to focus ecocide centrally on the natural environment? In a recent article on ecocide scholarship, Darryl Robinson argues that multiple commentators are interpreting the term ‘ecocentric’ in a manner that is ‘misanthropic’, meaning an approach that “exclude[s] human wellbeing and suffering from consideration”. He asserts that ‘ecocentric’ must be given a “human-inclusive” interpretation. Ecocide then should necessarily involve the balancing of human interests (namely, “human survival, suffering, and well-being”) against non-human interests (in accordance with “inter-species justice or the interests of the Earth community as a whole”).

As the misanthropic charge has been appended to one of the authors of this two-part piece, we consider it important to clarify that it rests on a fundamental misreading of some arguments advanced and an overlooking of others. In this first of a two-part piece, we advocate that: (1) conceiving ecocide to prioritise and protect the welfare and integrity of the natural environment is ecocentric; (2) treating humans as an integral part of the natural environment, for the purposes of ecocide, would allow the crime to be established without environmental harm; and (3) the Independent Expert Panel’s (‘IEP’) definition of ecocide harbours precisely this ambiguity and should be amended so that harm to humans bears only on gravity assessments, not on the actus reus.

The second of this two-part piece responds to a paired article by Robinson which argues that scholars positing that “all severe harm should be criminalised outright” are promoting an “absolute approach” which overlooks “humans must have some ecological footprint to survive”. Ecocide, according to him, must contain a ‘wrongfulness requirement’ which introduces some form of balancing at the conduct-level. We offer some critical clarifications and alternative means to address concerns that remain.

Ecocide: Rechtsgut–Handlungsobjekt and Definitional Elements

The influential Rechtsgutstheorie is helpful in articulating that principled criminalisation follows the identification of a legally-protected interest, or Rechtsgut (see here, Chapters 1 and 4). The existing core international crimes, namely, war crimes, crimes against humanity, genocide, and aggression, protect anthropogenic interests – specifically those of humans, their property, and constructs such as the state. Ecocide should in no way seek to remove, or be in contention with, those ‘anthropocentric’ protections. Instead, ecocide should be constructed as a crime with the welfare and integrity of the natural environment as Rechtsgut, and the natural environment in particular as the Handlungsobjekt (or the object of prohibited conduct/protection). Whilst harm to humans may inform ecocide prosecutions (particularly concerning gravity assessments and as evidence of environmental harm), anthropocentric harm as such should not be a necessary element. Ecocide would thus be applicable when (1) impermissible harm is caused to the natural environment irrespective of harm to humans and human-effected resources, but (2) not when impermissible harm is caused only to humans and human-effected resources without harm to the natural environment.

Herein, our chief concern and contention with Robinson is that over-emphasising humans as part of the definition of the ‘natural environment’, risks effectively centring harms to humans in the definition of ‘ecocide’. This may convert the crime into one which places considerable emphasis on anthropocentric Rechtsgüter and one which, at least by the IEP’s definition, could be demonstrated without showing any harm to the natural environment.

Robinson’s approach decontextualises ecocide from its criminal moorings. Although he acknowledges this criminal context, he defers to “scientifically-informed” and environmental ethics approaches, without reconciling these with the exigencies of criminal proceedings. Specifically, his claim that humans and nature are inseparable warrants further questioning from the perspective of criminal law. Courts do address crimes against nature without necessarily looking at impacts on humans, including in the context of poaching, toxic dumping, and air pollution. Conversely, if the inseparability is accepted as a matter of criminal law, this leaves open the question of how to distinguish between the natural environment and humans in purely human-constructed dwellings. Presumably, all commentators agree that purely anthropocentric crimes, such as large-scale executions in urban settings, are not meant to be captured by ecocide; yet Robinson’s arguments may lead to precisely that potential outcome, as set out below. Moreover, it does not specify how protected facets of the natural environment will be prioritized (for instance, a city park compared to a countryside meadow). Because of this definitional vagueness and alienation from its criminal ontology, Robinson’s approach risks humans and human interests dominating the application of ecocide.

Ecocentrism and the Object of Prioritisation/Protection

At a semantic level, ‘anthropocentrism’ can be defined as:

“[p]rimary or exclusive focus on humanity; the view or belief that humanity is the central or most important element of existence, esp. as opposed to God or the natural world”.

‘Ecocentrism’ constitutes a corresponding noun to anthropocentrism through its common suffix ‘-centric’. In keeping with that suffix, it can be defined in terms of the primary object of prioritisation:

“[t]he view or belief that environmental concerns should take precedence over the needs and rights of human beings considered in isolation”.

Its earliest usages demonstrate that the two terms have an oppositional relationship; “[t]he book is anthropocentric and not ecocentric” (see Ecology, vol. 53, pp. 371–372 (1972)). Consequently, two points emerge: (1) ecocentrism and anthropocentrism are two sides of the same definitional coin, with differing points of focus; (2) the question is not about excluding the other interests entirely, but rather about viewing those other interests through the lens of prioritisation (see Gillett, “Anthropocentricisation”, p. 4). Anthropocentrism would see environmental harm as relevant insofar as it impacts human well-being. Ecocentrism would see harm to humans as relevant insofar as it impacts the natural environment. The corollary of this is that harm to humans in and of itself is not decisive from an ecocentric perspective, just as environmental harm in and of itself is not decisive from an anthropocentric perspective.

Robinson accepts that the suffixation implies priority when used in ‘anthropocentric’, but denies that ‘ecocentric’ implies a similar prioritisation. Rather, he posits an ‘everything-under-the-sun’ reading of ecocentrism wherein the interest of “all beings […] and every form of life” must be balanced – supposedly in an ad hoc manner – such that:

“[e]cocentrism does not mean simply inverting the priorities so that human interests can never have priority over other interests, especially where necessary to meet basic needs”.

Notwithstanding the concerns over such indeterminacy in a criminal context, Robinson’s reading is heavily influenced by Earth Jurisprudence, which actively opposes the dichotomised prioritisation explained above. Ben Mylius (who Robinson quotes) explains the position in Earth Jurisprudence:

“Ecocentrism has no apex at which humans, or any entity, can be placed. Rather, it is a system of ecologies, networks and relationships, in which each entity relies upon and influences those around it. […] The question of whether it even has a centre should remain open: properly understood, the centre of ‘ecocentrism’ is not a fixed subject, but rather an event or process”.

This view, however, not only upends completely the process of identifying a Rechtsgut or Handlungsobjekt, but its vagueness also raises concerns about adherence to the principle of legality.

The Sufficient Constitutive Element

The loss of distinction between the considering ‘human interests’ as part of an ecocentric approach and including ‘humans’ as part of the ‘natural environment’ is fundamental. Robinson unduly conflates the two determinations (see here, p. 4 referring to “both human and non-human nature”, p. 5:

“For one, portraying the supposed exclusionary contrast between ‘humans’ and ‘nature’ means that ‘nature’ must be seen as excluding humans, which is not the ecocentric position”

and p. 6 referring to “not only humans but also the rest of nature” (emphases added)). Yet the distinction is helpful in a criminal law setting, in explaining how one may consider the natural environment as not including humans and human-effected resources (at least for the purposes of ecocide), but still regard human considerations of some relevance to an ecocentric crime of ecocide. We argue that considering humans as inherently part of the natural environment, for the purposes of ecocide, suffers from several flaws.

First, the conflation between humans and the natural environment risks seeping into the interpretation of the elements of the crime of ecocide itself. If the ‘natural environment’ is interpreted to directly include human beings (as Robinson appears to suggest), then, at least under some current formulations of ecocide, any impermissible harm to human beings would qualify as ecocide, irrespective of any such harm to the environment itself. This would broaden ecocide to encompass all manner of anthropocentric harms – from economic and material to psychological and cultural, and beyond.

Second, such a broad formulation of the sufficient constitutive element of ecocide would substantially encompass conduct criminalised under existing core international crimes, as enumerated in the Rome Statute of the International Criminal Court. This raises the question of the distinction between ecocide’s Rechtsgut and material scope vis-à-vis other core international crimes. There is a real risk that the primary focus of ecocide on the natural environment may be redirected towards an ever-growing, and eventually predominant, focus on human suffering.

Thought Experiments and the Conflation of Actus Reus and Gravity

To illustrate this risk further, consider two thought experiments. First, if a group of people is killed by a direct attack on an apartment building in Manhattan, would this qualify as ecocide? The question may seem facetious, but some leading definitions of ecocide may answer in the affirmative. For example, the definition of ecocide formulated by the IEP requires “severe and either widespread or long-term damage to the environment” to be caused. ‘Severe’ damage includes:

“[…] harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources”

‘Widespread’ damage includes that “which […] is suffered by an entire ecosystem or species or a large number of human beings” (emphasis added). While ‘any element of the environment’ is identified as the object of protection, the following definition of ‘severe’ breaks down the distinction between the natural environment and humans and human-effected resources. The apartment attack then appears to satisfy the IEP’s definition of ecocide, given that death would naturally qualify as ‘grave impacts on human life’, and provided a ‘large number of human beings’ were killed. Thus, even in a scenario which would not typically be described as involving significant environmental harm, the manner of inclusion of harm to humans in the IEP’s definition of ecocide may result in an extremely broad application by creative prosecutors or judges, extending to purely anthropocentric harm. This latent drafting ambiguity highlights the elasticity of ecocide formulations and the need for further clarification as to its object of protection.

Consider then the second thought experiment. If a non-state armed group plunders a stockpile of already-extracted gold ore sitting beside the country’s only gold mine, would this qualify as ecocide? The IEP’s commentary mentions that:

“the reference to ‘any element of the environment’ […] encompassed […] ‘the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space’”.

Here, ‘lithosphere’ is understood as “the interior and surface of Earth” and ‘biosphere’ is understood as “that part of the planet that can support living things” (footnote 12). A certain systemicity is inherent in each of these terms, such that extracted gold ores (human-effected resources) can be considered as de-linked from the system following human intervention. Whereas extracting ore from the ground would typically have significant impact on the natural environment, the mere plundering of extracted gold ore would not damage the natural environment at all. Similarly, of relevance to ecocide is the impermissible contamination through the leakage of highly enriched uranium or extracted oil, rather than mere leakage caused by an attack on a nuclear facility or oil platform. Yet the latter may be seen as having grave impacts on ‘natural, cultural or economic resources’. Similarly, in the first thought experiment, targeting an apartment in Manhattan would cause damage to individuals or groups of humans, but would not harm the biosphere in the same way as soil, water or air pollution.

But, on a broad reading, the plundering in the second thought experiment may satisfy the IEP’s definition of ecocide, especially since it concerns a country’s only gold resources. The risk, then, is twofold: (1) that ecocide prosecutions come to prioritise incidents with harm to humans or specific resources over those involving harm to the natural environment per se, and (2) that even when prosecutions remain confined to incidents where solely harm to humans or specific resources is present, ecocide is hailed as adequately protecting the natural environment as intended. The very purpose of formulating this novel crime, however, was to protect the natural environment in its own right.

Amendment Imperatives Concerning the IEP’s Ecocide Definition

Certainty should be pursued, not least because of the criminal nature of ecocide, but also since the IEP’s definition has been included in Vanuatu’s proposal to amend the Rome Statute. This formulation must then, at the very least, be amended to remove the above-identified latent drafting ambiguity. One cannot simply place reliance on the implementation by judges to iron out such grave conceptual creases (see further, Gillett, “Anthropocentricisation”, p. 10).

The manner we suggest is to mark a clear distinction between the object of protection as a matter of actus reus – namely, the natural environment – and considerations relevant to gravity assessments – namely, harm to humans and human-effected resources (including their type, quantity, and value). This would avoid shifting focus away from ecocide being environment-centric. Listing the underlying acts of ecocide would further add to the crime’s precision and adherence to the principle of legality.

Conclusion

As noted above, harm to humans, whether in an apartment or elsewhere, is a serious matter. The purpose of this piece is not to put that into question. Indeed, existing international crimes under the Rome Statute and domestic crimes under national criminal statutes are specifically designed to protect humans, their property, and other anthropogenic phenomena. These protections should be enforced rigorously. However, ecocide does not have to be designed as a further protection for humans. In fact, in the shadow of the established crimes, one can identify the concomitant historical deprioritisation of the natural environment, to which ecocide should respond.

To emphasise again, harm to humans is not irrelevant for ecocide. It may be one of the direct consequences of environmental harm; for instance, where deforestation displaces a people from their ancestral home territories and livelihoods. It may also evidence more aggregate ecosystem-level harm. However, harm to humans and human-effected resources, in and of itself, is not harm to the natural environment. Such anthropocentric harms should be addressed under other crimes, whilst ecocide is reserved for serious harms impacting the natural environment.